Earlier today, a federal district court judge in North Dakota enjoined implementation of the new Clean Water Rule (also known as the Waters of the United States rule). And if ever there was a judicial opinion begging for prompt reversal, this is it. EPA and the Army Corps of Engineers put years of effort into that rule, and drew upon an extraordinary number of studies to arrive at their position. The court pretended—among other errors—that all that effort and evidentiary support simply did not exist.
The Clean Water Rule determines the scope of federal jurisdiction under the Clean Water Act. More specifically, it includes within federal jurisdiction any tributary of a navigable-in-fact waterway, and the definition of tributary encompasses any stream—even intermittent or ephemeral ones—so long as that stream has a bed, banks, and an ordinary high water mark. That part of the rule, Judge Erickson has concluded, is inconsistent with the Clean Water Act and the Supreme Court’s Rapanos decision and is arbitrary and capricious (the court also held that another element of the rule was not a logical outgrowth of the proposed rule). And that holding, in turn, is premised on all kinds of problematic reasoning. 
Ignoring the Facts
One crux of the court’s reasoning was its assertion that the rule lacked any support in the administrative record. The court left no doubt on this point: it charged that “the agencies’ internal documents reflect the absence of any information about how the EPA obtained its presented results;” that “review of what has been made available reveals a process that is inexplicable, arbitrary, and devoid of a reasoned process;” that “the rule allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity of any navigable-in-fact water;” and that “no evidence points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.”
These statements are just plain false. In the rule itself, EPA and the Corps explained in great depth, and over and over again, why tributaries, including ephemeral tributaries, have a significant nexus to water quality in traditionally navigable waters. The rule also cited and summarized a technical support document—which the court purported to have read—that explained the connections in even greater depth. And the technical support document in turn cited a massive EPA study of the scientific literature on connections between tributaries and other forms of wetlands and water quality in navigable-in-fact waterways. That study in turn involved a review of about 1,200 scientific studies. The support documents also were vetted by EPA’s science advisory board—which concluded, in no uncertain terms, that “there is strong scientific evidence to support the EPA’s proposal to include all tributaries within the jurisdiction of the Clean Water Act.”
Over the past few months, I have read the rule, the technical support document, the science literature review, and the SAB report, and I have also read many of the studies cited by the science review. They contain a mountain of evidence that even intermittent streams and what the court described as “remote wetlands” do have a significant nexus to water quality in navigable-in-fact waterways. Study after study explains how even intermittent streams process nutrients, reducing downstream algae blooms; process carbon, providing the basis for food chains throughout river systems; provide breeding grounds for a wide variety of aquatic species; and provide a host of other water quality benefits throughout river systems. I honestly cannot imagine how any federal court judge could write that no such evidence informed EPA’s and the Army Corps’ decision. At best, that assertion is the wishful guess of an ideologue who had not actually read any of the relevant documents. At worst, it is just a bald-faced lie.
Distorting the Law
The district court’s opinion also displays a fairly flip attitude toward governing law. That attitude is on display in both the court’s discussion—or lack thereof—of agency deference and in its application of the Rapanos standard itself.
Deference isn’t much in evidence here. The idea that EPA and the Army Corps were basing the rule on scientific determinations that were within their expertise, and that a court should not likely second-guess, appears nowhere in the opinion. Nor does even a mention of Chevron deference, even though the court was reviewing a challenge to two agencies’ interpretation of their governing statutory law. That is somewhat ironic, for the opinion itself provides rather compelling support for arguments in favor of agency deference. The level of expertise and effort that went into the rule quite evidently dwarfs the level of expertise and effort that went into the court’s ruling, which barely even appears to have been proof-read. But that seems not to have troubled the court at all.
On Rapanos, the problems are more subtle but still quite real. The court relied heavily—almost entirely—on aRapanos passage in which Justice Kennedy expressed reservations about a jurisdictional rule that would extend to remote tributaries. The district court quoted Justice Kennedy’s words adequately, and they do express some concern about broad assertions of jurisdiction. But that was just two sentences in a long opinion. Elsewhere in his opinion, Justice Kennedy disagreed at length with the Rapanos plurality’s argument that intermittent waterways should be categorically non-jurisdictional. And his opinion also evinces a clear expectation that jurisdiction would extend to waterways that have, individually or collectively, a significant nexus to water quality in navigable-in-fact waters, and that significant nexus determinations would be heavily informed by science. EPA and the Army Corps now have made that significant nexus determination, and it is overwhelming supported by scientific research. Yet that part of Justice Kennedy’s opinion also is largely absent from Judge Erickson’s reasoning. As a consequence, Justice Kennedy’s vaguely-implied preference for narrow jurisdiction seems to have trumped the legal rule he actually articulated.
Other Problems
The opinion isn’t long, but it still gives rise to many other critiques. The court’s persistent references to “EPA regulation” and “EPA’s position” clearly echo the talking points of conservative critics of the rule—EPA clearly is a popular villain these days–but they ignore the reality that this rule was the joint work of EPA and the Army Corps. Its weighing of hardships suggests very little understanding of how the section 404 program actually is implemented, and by whom, and also assigns absolutely no weight to the public interest in environmental protection. Its “logical outgrowth” argument ignores a key purpose of that doctrine, which is to allow agencies to make some adjustments based on the comments they receive. But perhaps those are subjects for another post. The key point is just that this opinion distorts law and wishes away the central facts of the case. The sooner an appellate court does some real judging, the better.
This blog is cross-posted on the Environmental Law Professors’ Blog.
